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Citing Mora in discussing "associates" who were not "made" members of the crime family
Summary of this case from U.S. v. GammaranoOpinion
No. 02-CR-47 (S-3)_ (ILG)
December 17, 2002
MEMORANDUM AND ORDER
The government has moved this Court for an order that would direct that the jury to be empaneled for the trial of this case be anonymous, and that the jury be partially sequestered.
The defendants are alleged to be associates, as distinguished from "made" members of the Genovese Organized Crime Family. They are charged with racketeering conspiracy, racketeering, murder in aid of racketeering, conspiracy to make false statements and obstruct justice and making false statements and endeavoring to influence the testimony of grand jury witnesses.
It would be an affectation of research to cite the countless cases which have discussed the interests to be balanced and the factors to be considered in the determination of such a motion. Many of those cases were previously noted by the Court in United States v. Gotti, 777 F. Supp. 224 (E.D.N.Y. 1991).
Briefly, the interests to be balanced in the interest of the criminal justice system are, on the one hand, protecting the jurors and their families from actual or threatened violence, protecting them from the potential taint of extensive trial-related publicity, and sensitivity to the jurors' right of privacy — and, on the other hand, the defendants' interests in conducting a meaningful voir dire, retaining the presumption of innocence, and their Sixth Amendment rights. See Lift "Citizen-Soldiers" or Anonymous Justice: Reconciling the Sixth Amendment Right of the Accused, the First Amendment Right of the Media and the Privacy Right of Jurors, 25 Colum. J.L. Soc. Probs. 371 (1992).
The factors to be considered, that is, "the basic standard for determining when the use of an anonymous jury is constitutional" is that "there must be first, strong reason to believe that the jury needs protection and, second, reasonable precaution must be taken to minimize the effect that such a decision might have on the jurors' opinions of the defendants." United States v. Vario, 943 F.2d 236, 239 (2d Cir. 1991). The Vario Court also wrote that "The invocation of the words `organized crime,' `mob,' or `mafia' unless there is something more, does not warrant an anonymous jury." 943 F.3d at 241. The government asserts that there is "something more" here, namely, the defendants' relationship to the Genovese Family and that family's history of obstructing justice. The cases upon which the government relies for the latter assertion are cases in which Vincent Gigante, the reputed boss of the Genovese Family was tried. "These defendants are simply not of the same character as those whose power, prominence, and public presence would have warranted substantial jury protection." That conclusion reached by the Court inUnited States v. Mora, 1995 WL 519987, *4 (E.D.N.Y. 1995) is entirely apposite here.
In United States v. Melendez, 743 F. Supp. 135, 137 (E.D.N.Y. 1990), Judge Spatt alluded to three additional guideposts properly considered by a court in its determination of a motion such as this, viz.: (1) the seriousness of the offenses charged and whether they are alleged to have been committed in the context of a large scale criminal organization and whether the defendants have access to means to harm jurors: (2) whether the defendants have engaged in past attempts to interfere with the working of the judicial process, such as jury tampering or attempts to evade prosecution; and (3) the nature and degree of pretrial and expected publicity.
Those factors, together with the Vario standard noted above, have been carefully considered in relation to this indictment and to these defendants, and the Court is led to conclude that there is no "strong reason to believe" that total anonymity is required. Those factors do, however, lead the Court to conclude that a delicate balancing of the competing interests previously discussed require that some precautions are appropriate and the government's motion is hereby granted in part as follows:
1. Only the surnames of all prospective jurors will be disclosed.
2. The specific residence address of all prospective jurors will not be disclosed. Only the County and general area of residence within it will be disclosed.
3. The specific name and address of employment of all prospective jurors will not be disclosed. The general nature of employment will be revealed.
4. The jurors will be kept in the custody of the United States Marshal from the time of their arrival at the courthouse until the end of each day.
5. Before the start of each day, the jurors will be picked up at an undisclosed central location by the United States Marshal and transported to the courthouse and to the jury room of the courtroom in which this trial will be held.
6. At the end of each day, the jurors will be transported by the United States Marshal from the courthouse to an undisclosed central location from which they can depart for their respective homes and communities.
The government and the defendants are invited to suggest to the Court what explanation should be given for this selection procedure, which is not uncommon, and are invited to submit to the Court, on or before December 29th, 2002, voir dire questions they would request be asked.
The Court is constrained to add the same caveat it added in United States v. Gambino, 818 F. Supp. 536, 540 (E.D.N.Y. 1993), namely: If, in the course of the voir dire it becomes apparent to the Court that prospective jurors manifest a reluctance to serve by virtue of the nature of the charges, references in the indictment to organized crime and pretrial attention, if any, to the proceedings by the media, reconsideration will be given to empaneling an anonymous jury.
The parties are directed to appear for a pretrial conference at 10 a.m. on December 30th 2002, at which time motions in limine which have already been and will be filed will be heard and such other matters pertaining to the trial will be considered.
SO ORDERED.